07.22.13

Back on May 31, LightSquared asserted in its motion to retain Jefferies as placement agent for its exit financing that “both LightSquared and Jefferies are highly confident [that the retention] will lead to fully committed financing in an amount likely in excess of the face amount of the Prepetition LP Obligations, the Prepetition Inc. Obligations, and the DIP Obligations at relatively low costs to the LightSquared estates”. Two weeks ago, I noted that LightSquared had been forced to scale down its planned $3B debt raise to $2B, and would seek to force Ergen/Sound Point to accept PIK second lien debt instead of being repaid from the exit facility.

However, on Friday night LightSquared acknowledged that exclusivity had been lost and that competing plans for reorganization would be filed, followed by an auction of the company. Moreover, I’m told that today LightSquared and Jefferies dropped the planned exit financing facility completely (not just putting it “on hold” as was reported last week).

Falcone apparently told potential investors that he was unwilling to go forward because the facility was “too expensive” (with warrants for 15% of LightSquared’s equity being granted upfront to potential lenders). However, I understand that the change of direction appears to have resulted from LightSquared being hauled over the coals by the bankruptcy court last week for ignoring Ergen’s $2B cash offer, and the judge was unwilling to accept LightSquared’s contingent reorganization plan, which would have only been funded after FCC approval was received. As the Secured Lenders noted in their submission on July 9:

“Since these Chapter 11 Cases were filed over a year ago, the Debtors have told the Court repeatedly that the only way to realize value is to pursue a resolution of their regulatory problems with the Federal Communications Commission (“FCC”), and that all they needed was sufficient “runway” to achieve their objective. When the Cases were filed in May 2012, the Debtors believed they needed about six months to get there. In January 2013, during the exclusivity hearing, the Debtors’ management testified that they still needed about six months to clear the regulatory hurdles to value maximization. Today, they claim that their elusive objective remains six months or more away…In reality, the Debtors have no idea whether or when they will ever get regulatory approval.”

Now LightSquared has set out a lengthy timetable for an auction in December 2013 (which is already subject to an objection from the Secured Lenders), because (in fantasyland) Harbinger is apparently highly confident that the FCC will approve LightSquared’s request in November, enabling them to raise money for a counterbid on the back of that approval, before the auction actually takes place. However, even if LightSquared’s proposed timetable is approved (and it appears that the judge is actually losing patience with the company’s repeated delays), it seems rather more likely that Falcone is instead going to be 0 for 3 in his battles with Ergen (with LightSquared following the path trodden by DBSD and TerreStar).

I suppose at least for the time being, Phil can still tell everyone he’s “highly confident” that he will ultimately win his battle with the SEC, but again perhaps he now shouldn’t be as highly confident as in May when he “blindsided SEC officials” by publicly declaring that he’d escaped with a “slap on one wrist“.

07.09.13

Last week, John Dooley of Jarvinian, who have been conducting tests of Globalstar’s proposed TLPS service (which is intended to provide a dedicated, managed WiFi channel) made a filing with the FCC in which he stated that the recent TLPS testing in the Bay Area was undertaken “to help a major technology company assess the significant performance benefits of TLPS for a transformative consumer broadband application”. His filing did not state the name of this company, but the testing under Globalstar’s experimental license (issued by the FCC on April 1) was undertaken at 3 locations in Cupertino and Sunnyvale.

Of course, Amazon’s potential interest in Globalstar’s spectrum appears to be a key reason why Thermo agreed to invest another $85M into Globalstar in May, in order to complete the 5.75% notes exchange and restructure Globalstar’s $586M loan guaranteed by COFACE. Many investors are now also eagerly expecting the FCC to issue an NPRM setting out proposed rules for TLPS, although it is somewhat unclear whether Chairman Clyburn will act on her own, or if any decision will have to wait for incoming Chairman Wheeler (who has worked extensively on interference issues as chairman of the FCC’s TAC, which issued a report in February suggesting TLPS would be a good candidate for the FCC’s new approach to adjacent band interference).

The fact that the Globalstar experimental license will last for two years suggests that it may take some time for all interference issues to be resolved (including the dispute with BAS interests which is becoming increasinglyheated) and/or for Amazon to make a final decision on whether to use TLPS or other spectrum for its planned new application. If Amazon does choose Globalstar then this could lead to a substantial windfall: Globalstar has asserted that its spectrum is even more valuable than that of Clearwire, because of the unique compatibility of TLPS with existing WiFi equipment, implying that it puts a value of at least $2B on the 22MHz of TLPS spectrum.

With the FCC’s intention to license additional spectrum for unlicensed or shared use in the 3600MHz and 5GHz bands, along with promotion of white space access technology, Amazon may have a choice of other cheaper spectrum (albeit without the same ecosystem) in the near future or even using capacity on an existing wireless network. However, until we find out more about the nature of Amazon’s plans it will be hard to know which spectrum is most suitable, and how much Amazon would want to pay to gain access to it.

07.06.13

On Wednesday afternoon, it emerged that Jefferies’ attempts to raise a $3B exit financing facility for LightSquared had failed, with news that the debt was being split into two tranches, a first lien of $2B, with an increased interest rate (3% extra of Pay In Kind interest) and additional warrants (10% of diluted equity instead of 5%, with all of the warrants immediately vested, instead of the warrant grants increasing over time). In other words, third parties didn’t believe that LightSquared’s spectrum was worth more than $2B, even with the required FCC approvals. The terms of the $1B second lien were not specified, except that it would be all PIK interest and the syndication of this facility would be “handled” by Harbinger.

On Friday, the New York Post revealed that LightSquared plans to ask the bankruptcy court to force Charlie Ergen’s Sound Point Special Opportunities (SPSO) fund to accept this second lien debt, because, according to Harbinger’s court filing on Wednesday, Sound Point “fraudulently entered LightSquared’s capital structure…to prevent the Debtors from successfully reorganizing and acquire the Debtors’ assets on the cheap”. Instead Harbinger, wants the court to extend the July 15 exclusivity deadline, allowing LightSquared to pursue its own reorganization plan.

Its not a little ironic that Harbinger describes Ergen’s $2B offer for LightSquared’s satellite assets and spectrum as a “low ball bid” when Jefferies has only been able to raise $2B of debt secured against all of LightSquared’s assets, including its Crown Castle lease, and it will be interesting to see how the court views Harbinger’s arguments. As I noted on Monday, it seems like fantasyland to believe that the FCC will simply give LightSquared the 1675-80MHz spectrum band in the next few months and so it might not even be possible to get hold of the $2B loan and pay off the other (non-Ergen) debt in the foreseeable future. Presumably that is why (according to the NY Post article), LightSquared plans to borrow another $200M of DIP financing to extend its cash runway into next year.

However, LightSquared will of course be supported by everyone else in the capital structure apart from the secured debtholders, because Ergen’s proposed $2B bid would do little more than pay off the secured debt, and so LightSquared’s plan is their only chance of a recovery. As a result, we saw MAST and US Bank claiming in their court submission on Monday that FCC approval is “near certain”, a ludicrous distortion of the reality of the situation, based only on Genachowski’s expressed opinion, in response to my question, that the L-band will ultimately “be freed for terrestrial use”, which supposedly “foreshadowed approval of the application”.

Its therefore going to be very interesting to see how things develop at Tuesday’s status conference. Although the subordination plan may not be discussed in detail at that hearing (I’m told it will likely be published on July 15), it would certainly be a dramatic move if the court decided to subordinate Sound Point’s $1B holding to $2B of new debt, raising the possibility that Ergen’s $1B will never be repaid if LightSquared is unable to realize more than $2B when it tries to sell its spectrum. Then perhaps Phil can commiserate with Charlie that this is how it feels to lose $1B by investing in LightSquared…

LightSquared wants to extend exclusivity to give it more time to secure approvals from the FCC, because Jefferies is currently trying to get commitments for a $3B exit financing loan (which should be confirmed one way or the other this week). That loan, which carries an 8% interest rate plus substantial warrants for LightSquared equity, would pay off all of LightSquared debts and give Harbinger another year or more to find a buyer for LightSquared’s spectrum, while allowing the company to meet all of its obligations (including a resumption of lease payments to Inmarsat in April 2014).

However, LightSquared would not be permitted to draw down the loan unless and until the FCC has granted LightSquared rights to use the 1675-80MHz spectrum band. LightSquared has assured potential investors that it expects approval from the FCC this fall, shortly after Tom Wheeler takes over the chairmanship of the FCC, and that there will be no auction of the 1675-80MHz band (instead LightSquared will pay $80M for weather balloon relocation plus a further $170M “fee” in 2017). LightSquared also believes that it will be free to use its L-band uplinks without any GPS problems, as soon as the ruling is issued, and has told potential investors that the lower L-band downlinks will be available for use in 2015.

That sounds a lot like fantasyland (for example the FCC’s proposed FY2014 budget indicates that the 1675-80MHz spectrum will not be available until 2017 after weather balloons have been relocated), and some investors are apparently considering making a commitment in the expectation that no approvals will be received, because then they will get their commitment fees (in cash), but never have to put their money at risk.

A plausible best case for LightSquared is that the FCC defines a way forward later this year (i.e. more GPS testing and work to define interference standards), but it seems inconceivable that the FCC could simply hand over the 1675-80MHz spectrum band without at the very least defining service rules and an allocation framework through an NPRM and then conducting a 9-12 month comment cycle before any ruling is issued. More likely is that Wheeler has other things on his plate (like the incentive auctions), and a giveaway to LightSquared (along with alienating the DoD through more GPS testing) is not worth the political battle.

LightSquared is suggesting that a $3B loan would be well covered by the spectrum value, because it considers its spectrum to be worth the same as AWS-1 spectrum ($0.69/MHzPOP based on the Verizon-SpectrumCo transaction) and that there will be strong demand for its spectrum from AT&T and Sprint, who LightSquared believes would want to pair L-band uplink spectrum with WCS or BRS/EBS downlink spectrum respectively. While AT&T has the power to create a new ecosystem and has permission from the FCC to use WCS in an all downlink configuration, its hard to see why AT&T wouldn’t instead just buy the 1695-1710MHz uplink band which will be auctioned (very likely as unpaired spectrum) next year, with little competition from other carriers (except possibly DISH).

Sprint on the other hand has certainly learned its lesson from paying Apple $15.5B to ensure its own non-standard LTE spectrum was included in iPhones, and it would be crazy to try and make another unique band pairing when it will be far more straightforward to simply make use of the globally allocated BRS/EBS band in SoftBank’s small cell vision. Remember that Ergen wanted to buy Clearwire spectrum to take advantage of the emerging handset ecosystem in this band (as a mobile small cell play), and was going to use the AWS-4 spectrum for fixed wireless broadband (backhauling the mobile small cell traffic), so it wasn’t necessary to force the creation of a handset ecosystem in AWS-4. There’s no way that LightSquared’s spectrum will get an ecosystem outside North America (because international regulators won’t rush to address GPS issues and the 1670-80MHz band will still be allocated for meteorological systems elsewhere in the world), and without AT&T or Verizon, no-one will create an ecosystem in the US either.

So why is Ergen interested in buying LightSquared? If he’s now stuck without a wireless partner (and I don’t expect him to bid for T-Mobile now he won’t control any Clearwire spectrum), then he won’t be able to sell the AWS-4 spectrum to AT&T or Verizon (the two carriers who can force the creation of a new ecosystem at little cost to themselves) until after the next Presidential election, so it would be possible to take this time to reband AWS-4 spectrum to downlink and use LightSquared as uplink. More importantly, LightSquared’s spectrum is part of Ergen’s leverage in a battle with DirecTV (due to the upcoming Mexican coordination), which in my view is a far more plausible near term merger target for DISH, especially if the promise of a fixed wireless broadband network is sufficient enticement for the FCC to approve a DISH-DirecTV merger.

Of course, prospective lenders to LightSquared are therefore also betting that they will ultimately be backstopped by DISH’s interest in the spectrum band. Indeed some even think that Ergen will be prepared to bid $3B+ for the spectrum (despite the fact that this is far higher than DISH offered for Clearwire’s spectrum). Lenders might instead want to consider that by next year, a DISH-DirecTV merger will either have happened or not, and LightSquared’s spectrum will then offer little in the way of leverage to DISH.

In addition, the forthcoming FCC auctions of 75MHz of spectrum (H block, 1695-1710MHz uplink and AWS-3 likely paired with 1755-80MHz) may reset some expectations with regard to spectrum pricing, especially in unpaired uplink bands. Given that the new $3B loan will all have been spent within 12-18 months of emergence, it therefore seems there would be little reason for anyone interested in this spectrum not to wait until LightSquared once again runs out of money, and the price of the debt falls.

The one piece of good news, for Falcone, if not for the new lenders, is that as part of any exit financing deal, it seems that Harbinger will be released from any liability for misleading investors during the sale of LightSquared debt in 2010 and 2011 (when lenders were assured that GPS interference was no problem). So even if Phil ultimately does lose all of his investment in LightSquared, at least he will then only have to account to Harbinger’s investors and not to LightSquared’s investors as well.

As readers of this blog know, I’ve not been a fan of Row44′s content-focused strategy for inflight connectivity, and I pointed out how ludicrous Global Eagle’s forecasts were last November. However, the meltdown of this strategy has come even sooner than I expected, with today’s announcement that instead of charging for streaming video content on Southwest planes, the service will instead be sponsored by DISH Network and made available for free to passengers, in exchange for watching a 30 second commercial.

The fact that Row44 has struck this deal now, only a few months after launching the inflight TV service, suggests that the paid take-up has been dire (which is hardly a surprise, given the Southwest customer profile, their average flight length and the lack of onboard power outlets). Even worse, according to DISH’s CMO, the sponsorship has no announced end date (although it will run at least through the end of this year), suggesting that instead of being a temporary deal to boost awareness (like Gogo’s Thanksgiving to New Year 2010 free inflight WiFi offer, sponsored by Google), it may never be possible to get many passengers to pay for the service. This move may also be a pre-emptive counter to JetBlue’s plan to offer free inflight WiFi to its passengers, but will do nothing to boost take rates for Row44′s paid internet service, and will more likely undermine them now that Southwest passengers can instead watch video content for free.

The business projections presented by Global Eagle last November (setting out their supposed “highly visible” 2014 adjusted EBITDA forecast) estimated that the TV/VOD/IPTV service would have a take rate of 5.75% and generate $5 per user in 2014 (i.e. $0.29 per passenger opportunity), plus a further $0.15 per passenger in portal services. Although DISH has not revealed its sponsorship payment, according to my calculations based on Gogo’s S-1 filing, Google paid $7M for its 6 week sponsorship, or roughly $0.28 per passenger carried (about $2.50 per Internet session) during the period. Its a safe bet that DISH is paying a lot less than that for an ongoing deal: I’d estimate roughly $1M per month (~$0.10 per passenger carried), or about a third of Global Eagle’s projection for revenues from these services in 2014.

UPDATE (7/1): It was pointed out to me that the sponsorship deal is between DISH and Southwest, so it’s not clear how much of DISH’s sponsorship payments are being passed on to Row44 or indeed if Southwest will be making additional payments to Row44 to subsidize the TV service. That is possible, but its hard to believe that Southwest would want to provide a large subsidy to Row44 for an indefinite duration, when Southwest originally expected to be receiving a share of revenues, just like from inflight WiFi (and when Gogo is offering airlines a ~30% revenue share from its Gogo Vision services).

UPDATE (7/3): Global Eagle confirmed in a press release that “its Row 44 subsidiary has entered into a groundbreaking content and connectivity partnership with its customer Southwest Airlines” or (without the spin), that Row44 has changes the terms of its TV services agreement with Southwest, presumably to a flat fee rather than a revenue share. Undoubtedly this means a reduction compared to Row44′s projected 2014 revenues, although when the next set of financial results come out, look for further spin describing the change as providing a significant boost to revenues in 2013Q3 (compared of course to the near total absence of content revenues in Q2).

Based on Gogo’s published data, revenue from portal services is also going to be vastly less than Global Eagle estimates, while there has also been “an increase in license fees paid for the content delivered to airline customers” (which are unlikely to reduce, even if revenues are lower than expectations) and bizarrely, Global Eagle appears to have ignored any revenue share that may be payable to Southwest in its assumption of a 87% gross margin on content services. By my estimates, even ignoring any negative impact on Row44′s connectivity revenues from the free TV offering, that could leave a $30M to $40M hole in Global Eagle’s projected $75M of adjusted EBITDA in 2014. Put another way, it seems that this business really wasn’t “highly visible” after all.